Norfolk Beet-Sugar Company v. Preuner

• Decision Date: 23 June 1898
• Docket Number: 8165
• Citation: 75 N.W. 1097,55 Neb. 656
• Parties: NORFOLK BEET-SUGAR COMPANY v. FREDERICK PREUNER
• Court: Nebraska Supreme Court

75 N.W. 1097

55 Neb. 656

NORFOLK BEET-SUGAR COMPANY v. FREDERICK PREUNER

No. 8165

Supreme Court of Nebraska

June 23, 1898

ERROR from the district court of Madison county. Tried below before ROBINSON, J. Reversed.

REVERSED AND REMANDED.

Powers & Hays, for plaintiff in error.

E. F Gray and George L. Whitham, contra.

OPINION

IRVINE, C.

Preuner sued the Norfolk Beet-Sugar Company to recover for personal injuries sustained while in its employ. The cause of action briefly stated, was that he was inexperienced in the use of machinery, and that the defendant maintained in connection with its sugar factory a lime mill, in which was machinery defectively constructed in that a rapidly revolving pulley was connected with a shaft by means of a wedge and set screw so projecting that they were likely to engage the clothing of persons there working, and were set below the surface in a pit constructed for the purpose; that a leaking water pipe discharged its contents into the pit in such manner that it became necessary to bail out the water from the pit while the machinery was in motion. It was alleged that the plaintiff was directed to perform this work and, while so doing, his clothing was caught by the wedge, set screw, shaft, and pulley, and that he was thereby injured. The answer denied negligence on the part of defendant and alleged that the injury was caused by the negligence of plaintiff in attempting to remove the water without removing his coat as he had been instructed to do. The jury returned a general verdict for the plaintiff and also answered certain special interrogatories. The defendant moved for judgment on the special findings, notwithstanding the general verdict. The court overruled this motion and entered judgment on the general verdict. The defendant brings the case here, assigning as error the overruling of its motion.

Section 294 of the Code of Civil Procedure enacts that, "When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly."

Following are the special findings:

"1. Was the accident caused by the plaintiff's coat or garments coming in contact with the revolving shaft near which he was working at the time? Yes.

"2. Was the danger of working near the revolving shaft described in evidence, as plaintiff was doing at the time the accident occurred, obvious to a person of ordinary intelligence and foresight? Yes.

"3. Was the plaintiff careless in working near the revolving shaft described in evidence without first removing his coat or protecting his garments from coming in contact with the shaft? Yes.

"6. Would the accident probably have been avoided had the plaintiff removed his coat before going near the shaft to work? Yes.

"7. Could the plaintiff have performed the work assigned to him, that of dipping water from the basin under the pulley mentioned in evidence, without exposing his person to danger from the shaft, by standing upon and performing said work on the south side of said shaft? Yes.

"8. Was the plaintiff careless in attempting to perform said work by leaning over and placing his person in close proximity to the revolving shaft while dipping said water from under the moving pulley? In answering this question you may take into consideration the plaintiff's experience or lack of experience with moving machinery, and any directions or instructions which may have been given plaintiff by his foreman as to the manner in which said work should be performed. No."

These findings seem on first reading to be inconsistent, and we were at first of...